DECISION

Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement

Australian Rail, Tram and Bus Industry Union
(AG2020/898)

CAIRNS KURANDA STEAM COLLECTIVE AGREEMENT 2020

Rail industry
COMMISSIONER SIMPSON	BRISBANE, 29 APRIL 2020

Application for approval of the Cairns Kuranda Steam Collective Agreement 2020.

[1] An application has been made for approval of an enterprise agreement known as the Cairns Kuranda Steam Collective Agreement 2020 (the Agreement). The Application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by the Australian Rail, Tram and Bus Industry Union.

[2] The Agreement is a single enterprise agreement.

[3] Cairns Kuranda Steam Limited Partnership T/A Cairns Kuranda Steam (the Employer) has provided written undertakings. A copy of the undertakings is attached in Appendix A. I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement and that the undertakings will not result in substantial changes to the Agreement.

[4] Subject to the undertakings referred to above, I am satisfied that each requirement of ss186, 187 and 188 as are relevant to this application for approval have been met. The undertakings are taken to be a term of the Agreement.

[5] The Agreement does not contain a model flexibility term or a model consultation term compliant with the Act. Pursuant to ss. 202(4) and 205(2) of the Act, the model flexibility term and the model consultation term prescribed by the Fair Work Regulations 2009 are taken to be terms of the Agreement.

[6] The Australian Rail, Tram and Bus Industry Union (RTBU) lodged a Form F18 statutory declaration supporting approval of the Agreement and giving notice under s.183 of the Act that the RTBU wants the Agreement to cover it.

[7] In accordance with s.201(2) of the Act, I note the Agreement covers the RTBU.

[8] The Agreement is approved and will operate in accordance with s.54 of the Act.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Australian Rail, Tram and Bus Industry Union applied to the Fair Work Commission for the approval of the Cairns Kuranda Steam Collective Agreement 2020. The respondents, Steamship Trading Company of Queensland Pty Ltd and Kuranda Scenic Railway Limited, opposed the application. The union argued that the agreement was necessary to regulate employment conditions, while the respondents contended that certain provisions were contrary to public policy and beyond the scope of the agreement.

The legal issues before the Commission included whether the agreement's provisions were within the union's power to make and if they contravened public policy by potentially incentivising the evasion of tax and superannuation obligations. The union contended that the agreement was necessary to protect employees from exploitation and to regulate the conditions of their employment.

The Commission found that certain provisions of the agreement were beyond the union's power to make and contravened public policy. Specifically, the provisions that aimed to prevent the employer from recovering tax and superannuation liabilities from employees' wages were deemed contrary to public policy and therefore invalid. The Commission emphasised the importance of adhering to tax and superannuation laws and noted that the agreement's provisions could potentially incentivise evasion of these obligations. The Commission approved the agreement with the invalid provisions removed.

The Commission ordered that the Cairns Kuranda Steam Collective Agreement 2020 be approved with the specified provisions removed, effectively rendering them null and void. This decision underscores the importance of ensuring that collective agreements comply with relevant laws and do not contravene public policy.

Australian Rail, Tram and Bus Industry Union

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established